Lupacchini NO and Another v Minister of Safety and Security

The Lupacchini Family Trust was required by its trust deed to have at least two trustees. One trustee resigned in 2003 and another person purported to act as a ‘temporary trustee’ without authorisation by the Master of the High Court as required by s 6(1) of the Trust Property Control Act 57 of 1988. In August 2004, an action for damages against the Minister of Safety and Security, arising from an alleged unlawful police raid on trust property, was instituted by two trustees, one of whom (the second appellant) had not yet been authorised by the Master. The Master only issued the required authorisation after the action had already been commenced. The Minister raised a special plea that the proceedings were a nullity because of the lack of authorisation at the time summons was issued.

The appeal was dismissed with costs, confirming that the action instituted by unauthorised trustees was a nullity.

The case authoritatively clarifies that trustees who have not obtained the Master’s authorisation under s 6(1) of the Trust Property Control Act lack capacity to litigate on behalf of a trust, and that proceedings commenced without such authorisation are void. It resolved uncertainty created by earlier High Court authority and reinforced strict compliance with statutory requirements governing trustees.